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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6044

February 26, 1982

BOTTLES AND BOTTLING:

Redemption of beverage container obtained from vending machine at a gas station

A gas station which maintains a vending machine on its premises is not required to redeem beverage containers which are of the same kind, size and brand as dispensed by the machine if the operator of the machine specifically indicates, on the machine, that the purchase price does not include a deposit charge because the contents of the beverage container are to be consumed on the premises of the gas station.

Honorable Perry Bullard

House of Representatives

State Capitol

Lansing, Michigan

You have requested my opinion whether a gas station which has a vending machine located on its premises which dispenses soft drinks in beverage containers may refuse to redeem those beverage containers once the contents have been consumed.

1976 PA Initiated Measure; MCLA 445.571 et seq; MSA 18.1206(11) et seq, provides for a system of deposits and refunds on all soft drink beverages sold in returnable beverage containers within the state. 1976 PA Initiated Measure, supra, Sec. 1, defines 'beverage,' 'beverage container,' and 'dealer' as follows:

'(a) 'Beverage' means a soft drink, soda water, carbonated natural or mineral water, or other nonalcoholic carbonated drink; beer, ale, or other malt drink of whatever alcoholic content.'

'(b) 'Beverage container' means an air-tight metal, glass, paper, or plastic container, or a container composed of a combination of these materials, which, at the time of sale, contains 1 gallon or less of a beverage.'

'(f) 'Dealer' means a person who sells or offers for sale to consumers within this state a beverage in a beverage container, including an operator of a vending machine containing a beverage in a beverage container.'

Thus, an owner or operator of an establishment which has a vending machine located on the premises which dispenses 'beverages' in 'beverage containers' is a 'dealer.'

As last amended by 1977 PA 270, 1976 PA Initiated Measure, supra, Sec. 2(7), provides that every beverage container sold by a dealer is required to have the name of Michigan on it and its refund value. This requirement includes beverage containers sold through a vending machine. 1976 Initiated Measure, Sec. 2, supra, in pertinent part, also sets forth the requirements which a dealer must observe in regard to refunds of deposits on returnable beverage containers:

'(1) A dealer shall not, within this state, sell, offer for sale, or give to consumers a nonreturnable container or a beverage in a nonreturnable container.

'(2) A dealer who regularly sells beverages for consumption off the dealer's premises shall provide on the premises, or within 100 yards of the premises on which the dealer sells or offers for sale a beverage in a returnable container, a convenient means whereby the containers of any kind, size, and brand sold or offered for sale by the dealer may be returned by, and the deposit refunded in cash to, a person whether or not the person is the original customer of that dealer, and whether or not the container was sold by that dealer.

'(4) A dealer shall not refuse to accept from a person an empty returnable container of any kind, size, and brand sold by that dealer, nor refuse to pay to the person its full refund value in cash, except as provided in subsection (5) and (7).

'(5) A dealer who does not require a deposit on a returnable container when the contents are consumed in the dealer's sale or consumption area shall not be required to pay a refund for accepting that empty container.' (Emphasis supplied.)

It is clear that the intent of 1976 PA Initiated Measure, Sec. 2(5), supra, is to exclude restaurants, bars and other places, wherein food and beverages are consumed on the premises, from the requirement that a deposit be collected from a customer or a refund paid to a customer on the beverage containers when the beverage is consumed on the premises. However, as a practical matter, the very nature of a vending machine indicates that such machines may be used to sell beverages which may be consumed either in the area of the machine or at some other place. In addition, it should be noted that neither the owner nor operator of the machine is necessarily present at the time of sale of the beverage. With regard to machines whose dealers require that machine vended beverages be consumed on the premises where the vending machines are located by so indicating on the vending machines or by other actions of the owner or operator of the machines, it may be concluded that a deposit, pursuant to the language set forth in 1976 PA Initiated Measure, Sec. 2(5), supra, is not required.

It is my opinion, therefore, that a gas station which maintains a vending machine located on its premises is not required to redeem beverage containers which are of the same kind, size and brand as dispensed by the vending machine if the operator specifically indicates on the machine that the price does not include a deposit charge because the contents of the beverage container are to be consumed on the premises of the gas station. If such a requirement is not imposed, then such containers must be redeemed.

Frank J. Kelley

Attorney General


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